Like father, like son: a commonwealth reversal?

Like father, like son: a commonwealth reversal?

Written by Rory Hamilton Coggins

Perhaps the greatest Canadian legal instrument, our repatriated constitution and the Charter of Rights and Freedoms entrenched therein, had a surprisingly humble genesis. The break-through moment, which paved the way for Canada’s radical departure from the British constitutional tradition, came on November 4, 1981 in a kitchen, no less. In this short piece, I suggest that the path trail-blazed by Canada is one the United Kingdom could eventually follow us down.

But first, some introduction to our national adventure is in order. The kitchen in question was that of the Government Conference Centre in Ottawa. Representing Prime Minister Pierre Elliot Trudeau and the federal government, Minister of Justice Jean Chrétien (who would later go on to become prime minister in his own right) haphazardly met with attorney generals Roy Romanow of Saskatchewan and Roy McMurty of Ontario1. They were able to sketch out a rough but workable provincial-federal compromise on the repatriation of the constitution, including the key issues of the resulting power of the provincial governments, along with the actual content of the Charter. The Ottawa “Kitchen Accord” was, in the context of the viciously bitter and highly publicized political battle that was being fought, a small miracle of shear political force of will.

Not every issued was solved though, and it would not be until April of the following year that the Constitution Act 1982 became law. Much of the preceding antagonism centred around eight provinces (imaginatively referred to as the “Gang of Eight”) who opposed the federal government, largely on issues of provincial power and integration and application of the Charter, along with its content2. Further complicating matters were the competing arguments for more or less protection and the inclusion of women, Aboriginal Canadians, the disabled, and others in the Charter. Naturally, more existential questions about exactly how deeply Canada’s relationships with Britain and the monarch should run also caused great consternation as we contemplated our bold split. On some issues, it was impossible to reconcile everybody. Quebec, for their part, still refuses to give their approval to this day, despite several subsequent conferences3. Their own Supreme Court, joined by the Supreme Court of Canada, made clear that while their consent was required by convention, it was not in fact required by law4.

Nevertheless, Canadian’s reputation for friendliness and politeness is well founded and most of the heated debate has evaporated into a resounding appreciation and affection for our nation’s constitution. A 2013 government survey found that 93% of Canadians believed the Charter of Rights and Freedoms was important to the national identity5. This figure was the highest, shockingly even higher than for Mounties and hockey!

That said, Canadian satisfaction with our written constitution hardly answers for a century of British skepticism on the issue. Perhaps the best example of what can go wrong is found in Canada’s southern neighbour. Constitutional debates in the United States frequently amount to vulgar displays of thinly disguised partisan politics, all attempting to reconcile modern questions with inflexible and outdated rules, instead of discussions about the true legal merits. This is not to take a swipe at the U.S Supreme Court, the Constitution and Bill of Rights, or indeed the Founding Father’s progressive vision. Rather, the problem is with how dogmatized constitutional issues have become in the United States. Thomas Jefferson reappearing from the grave and explaining his exact view on the 2nd amendment would likely do little to quench the flames of gun control politics. The British unwritten constitution does not suffer from this kind of entrenched inflexibility. The constitution is able to react fluidly, rapidly, and effectively to changing political and socio-economic circumstances. Fundamental rights are protected (albeit not collated very well) without deifying the constitution and turning it into a rapidly ageing pair of national handcuffs. However, the mechanisms which allow the constitution to be changed rapidly have another side to them. In the same way as with any other legislation, Parliament can rashly and carelessly (or perhaps intentionally) do very rapid and significant damage to fundamental rights. The not-so-distance memory of the Blair-era “War on Terror” is a reminder that this can happen, even in liberal democracies.

In more ways than one, the Canadian experiment represents a middle ground between the United States and the United Kingdom. Thankfully, Canadian constitutional debates have continued to resemble those of the United Kingdom, with nuance and principle reigning supreme over dogmatic politics. Rather than trying to tackle a key problem with written constitutions — that they are naturally so hard to change — Canada made an informed choice to include in the Charter only material that was fundamentally associated with our values and, by virtue of that, timeless. Notably, most of the elements of the U.S Constitution that presently cause so much difficulty, like the right to bear arms, were reflections of the realpolitik of the time. The Founding Fathers could not write the Constitution in a vacuum of American values. Rather, they had to write it with respect to the challenges and threats of the day if the country was to have any prospect of survival. In the context of a popular revolution, provisions for civilians to have weapons and form militias make perfect sense. This is not necessarily the case 200 years on. By writing our constitution at a more somber moment, Canada has thus far avoided these problems while at the same time ensuring that more than just public opinion stands between government and the dispatching of fundamental rights and principles.

When it came to the protections for the previously mentioned marginalized groups and the expansion of fundamental rights and freedoms, the Charter was eons ahead of its time. Still, we hardly needed to go as far as reinventing our constitutional principles to make sure people with hearing impairments had more equitable employment opportunities, or that Aboriginal children were not unfairly disadvantaged in their education. Adopting the written constitution produced two benefits (amongst others). First, it emphasized Canada’s sovereignty and self-determination relative to Britain by repatriating what was ours. This is obviously unique to the Canadian experience, but nonetheless is worth mentioning and is strongly reflected in how closely Canadian’s associate the Charter with the national identity. Second, and more broadly relevant, it made the constitution accessible to everyone. People no longer just knew they had the right to freedom of speech, freedom of conscience, etc. — they could actually hang those rights up on their wall. Canadians are not in the habit of quoting their rights by amendment like American’s, but nonetheless they know them intimately and as a consequence are prepared to defend them vociferously when and if they come under attack. Making the constitution more accessible to “everyone” also meant making it clearer and more accessible for the courts, and some of the cost of fully codifying the UK constitution would no doubt be offset in the long term by the savings in proceedings. Obviously, the argument on the positives and negatives of written and unwritten constitutions rightly incorporates a great many more factors than just the issue of clarity and accessibility. However, this benefit of written constitutions is one of the most practical and publicly felt. Our adventure has not caused our political and legal systems to shatter from rigidity and inflexibility and has instead given us an enshrined beacon of Canadian values.

The question of what the nation’s constitution should look like is a personal one and is ultimately something the British people will have to decide for themselves in the same way Canadians did. What can be said for certain though is that the political and legal world is unlikely to collapse if the United Kingdom did adopt a written constitution. There are big benefits to be had as far as the absolute protection of the most basic rights are concerned, without sacrificing too much by way of flexibility or parliamentary sovereignty. In the national uncertainty of Brexit, particularly as EU constitutional documents threaten to disappear, a bit of value soul-searching might even be a welcome reinforcement to the British national identity.

If that appeals, we have the recipe — you just find the kitchen.

“Patriation of the Constitution.” The Canadian Encyclopedia. Accessed October 06, 2018. https://www.thecanadianencyclopedia.ca/en/article/patriation-of-the-constitution.

“Patriation of the Constitution.” The Canadian Encyclopedia. Accessed October 06, 2018. https://www.thecanadianencyclopedia.ca/en/article/patriation-of-the-constitution.

Marie Sinha. Spotlight on Canadians: Results from the General Social Survey. Statistics Canada. October 1, 2015. Accessed October 6, 2018. https://www150.statcan.gc.ca/n1/en/pub/89-652-x/89-652-x2015005-eng.pdf?st=3gON25u3.